Same-Sex Marriage and Divorce in NYS

---

Introduction

The legalization of same-sex marriage in New York in 2011, and subsequently nationwide with the U.S. Supreme Court’s ruling in Obergefell v. Hodges in 2015, represented major milestones for LGBTQ+ rights. However, while same-sex couples now enjoy the same legal right to marry as heterosexual couples, there are unique legal challenges that arise when it comes to divorce, child custody, and adoption.

Family law has long been grounded in traditional notions of marriage, parenthood, and property, and although same-sex couples now have access to these legal institutions, the evolving nature of family law continues to affect how courts handle the dissolution of same-sex marriages. This analysis explores the legal challenges specific to same-sex couples in New York, focusing on the nuances surrounding marital dissolution, child custody, adoption, and parental rights. These issues highlight the ongoing need for legal reforms and clarity as the LGBTQ+ community navigates family law.

The Evolution of Same-Sex Marriage in New York State

1.1 Legalization of Same-Sex Marriage

In 2011, New York became the sixth state in the U.S. to legalize same-sex marriage with the passage of the Marriage Equality Act. This historic legislation granted same-sex couples the same legal rights and responsibilities as opposite-sex couples, including the ability to marry, adopt, and seek legal protections under family law.

The passage of this law was seen as a major victory for LGBTQ+ rights, but it also raised important legal questions about how family law, which had been traditionally based on heterosexual relationships, would apply to same-sex couples. The Obergefell v. Hodges decision in 2015 further cemented these rights by ruling that same-sex marriage is a constitutional right across the United States, forcing states that had previously banned same-sex marriage to recognize and perform these unions.

1.2 New Rights and Responsibilities for Same-Sex Couples

Same-sex couples in New York, like their heterosexual counterparts, now enjoy the right to marry, divorce, adopt, and inherit. However, with these rights come responsibilities, particularly when marriages dissolve. Courts must address issues like spousal support, child custody, and the division of property, just as they would for any other couple. However, because of the relatively recent recognition of these marriages, there remain challenges in navigating certain aspects of family law, especially when it comes to non-traditional family structures and the legal recognition of parentage.

Divorce and Marital Dissolution: Legal Challenges for Same-Sex Couples

2.1 Length of the Marriage

One of the primary challenges in same-sex divorce cases involves determining the length of the marriage. Before same-sex marriage was legalized, many couples were already living in long-

term relationships, sharing financial responsibilities, and raising children together. However, because they were unable to marry legally, they could only formalize their unions once same sex

marriage became legal. When it comes to divorce, this creates a unique challenge: should the court consider the entire length of the relationship, or only the period after the marriage became legally recognized? The length of the marriage is important because it influences decisions regarding spousal support (alimony), the division of assets, and retirement benefits. For example:

• In cases involving long-term partnerships that predate legal marriage, courts may face difficulties in fairly dividing assets accumulated during the relationship.
• If a couple was together for 20 years but could only legally marry for the last five years, disputes may arise over how to treat property acquired before the legal marriage. 

New York courts have shown flexibility in some cases, considering the entire length of the partnership when making equitable decisions. However, the lack of clear guidance from statutes on how to handle these situations leads to uncertainty and inconsistent rulings.

2.2 Spousal Support (Alimony)

As with heterosexual marriages, spousal support may be awarded in same-sex divorce cases. However, same-sex couples often face unique challenges related to spousal support:

• If the couple had unequal earning power due to one partner assuming traditional roles such as homemaker, this disparity may influence the amount and duration of support.
• As with the length of the marriage, courts may struggle with determining when the economic partnership between the couple began if the couple had a long pre-marriage relationship.

New York law provides judges with discretion when determining spousal support, considering factors like income disparity, contributions to the marriage, and each spouse’s future earning potential. However, the relative novelty of same-sex divorce means that legal precedents are still being established, leading to variability in outcomes.

Child Custody and Parental Rights in Same-Sex Marriages

3.1 Establishing Legal Parentage

One of the most complex legal issues for same-sex couples involves the recognition of parental rights. In heterosexual marriages, the law presumes that both the husband and wife are the legal parents of any child born during the marriage. However, in same-sex marriages, establishing parentage may not be as straightforward, especially in cases involving adoption, surrogacy, or artificial insemination.

In many same-sex marriages, only one spouse is the biological parent of the child, and the other spouse may need to take legal steps to establish parentage. For example:

• In cases where a child is conceived through artificial insemination, the non-biological parent may need to formally adopt the child to secure parental rights.
• In some cases, same-sex couples may turn to second-parent adoption, where the non- biological parent adopts the child to ensure they have the same legal rights as the biological parent.

Without legal recognition of parentage, the non-biological parent may face challenges in custody disputes, and their parental rights could be called into question during divorce proceedings.

4.2 Surrogacy and Assisted Reproductive Technology

Surrogacy has become an increasingly common option for same-sex couples who want to have biological children. In New York, however, surrogacy has historically been a controversial issue.

Until recently, the state had some of the strictest laws banning commercial surrogacy, meaning that couples could not legally pay a surrogate to carry a child for them.

This changed in 2020 with the passage of the Child-Parent Security Act, which legalized gestational surrogacy (where the surrogate has no genetic connection to the child) in New York. The new law also provides protections for intended parents, ensuring that they can establish legal parentage for children born via surrogacy.

For same-sex couples, the new surrogacy laws are a major advancement, providing a legal

framework to secure parental rights for both spouses from the moment of birth. However, navigating the surrogacy process still requires careful legal planning, including the drafting of

surrogacy agreements and ensuring that the legal requirements for establishing parentage are followed.

Divorce and the Division of Marital Assets

5.1 Equitable Distribution in Same-Sex Divorces

New York is an equitable distribution state, meaning that in the event of a divorce, the court divides marital property in a way that it deems fair, though not necessarily equal. In same-sex divorces, the equitable distribution of property can be complicated by factors such as:

• The length of the relationship: As mentioned earlier, couples who were together for many years before same-sex marriage was legalized may face difficulties determining which assets are marital property and which are separate.
• Commingling of assets: Same-sex couples often commingled assets before they were legally allowed to marry, and determining whether certain property is marital or separate can be a challenge in divorce proceedings.

Courts will consider factors such as each spouse’s contributions to the marriage, the length of the marriage, and the financial needs of each spouse when dividing property. Legal professionals

often advise same-sex couples to create prenuptial agreements or other legal documents that clearly define property ownership in order to avoid disputes during divorce.

5.2 Challenges with Retirement and Pension Plans

In many same-sex marriages, one spouse may have accrued retirement benefits or pensions before the marriage was legally recognized. This can create disputes during divorce proceedings, as the non-earning spouse may argue that they contributed to the relationship and supported the other spouse during the time those benefits were accumulated.

While New York law provides for the division of retirement benefits and pensions in divorce, same-sex couples may face unique challenges if the benefits were earned before they were legally allowed to marry. Courts must navigate these complexities, and legal precedents continue to evolve.